Zero Tolerance Policy

June, 2020

On May 7, 2018, the Department of Justice (DOJ) implemented a zero tolerance policy toward illegal border crossing both to discourage illegal migration into the United States and reduce the burden of processing asylum claims that Administration officials contend are often fraudulent. The stated goal of the policy is to prosecute all of the prosecutions referred to the DOJ “to the extent practicable.” With limited resources, no Administration has been able to prosecute 100% of the illegal crossings.

Prior Administrations focused on individuals, and did not prosecute families. The current Administration reversed this, ignoring individuals and prosecuting families. Criminally prosecuting adults for illegal border crossing requires detaining them in federal facilities, where children are not permitted.

A 2015 court settlement requires that separated children must be removed from immigration detention centers within 20 days. Since the parents are still in custody, due to huge backlog of cases, the children are turned over to Health and Human Services (HHS) for care. The Administration had no effective system for tracking and reconnecting the parents and children.

Facts You Should Know

  • Family arrests increased from 11,000 in Fiscal Year (FY) 2012 to 68,560 in the first nine months of FY 2018. In FY 2019 the U.S. Customs and Border Patrol apprehended more than 474,000 minor children and adults traveling as families and about 76,000 unaccompanied children along our Southwest border.
  • The national origin of the families has shifted from Mexico to mostly Central America.
  • Physical presence in the United States without proper authorization is a civil violation, not a criminal offense. The US Department of Homeland Security (DHS) can deport individuals, but cannot charge them with a criminal offense based solely on a civilian infraction.
  • Per Title 8 of the US Code it is a crime to enter or re-enter the United States:
    • Without proper inspection at a port of entry or when one makes false statements while entering or attempting to enter. A first offense is a misdemeanor with by a fine, up to six months in prison or both.
    • After having been deported, ordered removed, or denied admission. This crime is punishable as a felony with a maximum sentence of two years in prison. Higher penalties apply, if the person was previously removed.
  • The US Department of Homeland Security estimates that in FY 2020 detention will cost taxpayers approximately $130 per bed for those in adult detention, $269 per bed for those in family detention and over $2.5 billion total for the year.

  • There are alternatives that are more humane and cost-effective than detention.

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Updated October, 2020

In 1985, two organizations filed a class-action lawsuit on behalf of immigrant children detained by the former Immigration and Naturalization Service (INS) challenging procedures regarding the detention, treatment, and release of children. After many years of litigation, including an appeal to the United States Supreme Court, the parties reached a settlement in 1997.

The Flores Settlement Agreement imposed several obligations on the immigration authorities.

  • The government is required to release children from immigration detention in this priority of preference:
  • Parents, other adult relatives as well as licensed programs willing to accept custody.

Where a suitable placement is not immediately available, the government is obligated to place children in the “least restrictive” setting.

The Unaccompanied Alien Children program was transferred to the Office of Refugee Resettlement (ORR) by the Homeland Security Act of 2002, effective on March 1, 2003. Once the ORR assumed responsibility, the Flores Settlement was implemented.

  • Facts You Should Know

  • 2014: the federal government responded to an increase in the number of children seeking protection at the border by increasing the number of family detention beds from 90 to 3,700. The government pursued an policy of incarcerating thousands of families while attempting to block their release on bond or parole.
  • 2015: U.S. District Court for the Central District of California rules that the federal government’s family detention policy violated the terms of the Flores Settlement Agreement.
  • 2016: U.S. Court of Appeals for the Ninth Circuit affirms that the Flores Agreement applies to accompanied minors in addition to unaccompanied minors.
  • 2017: The District Court finds that the government is failing to comply with its obligations under Flores.
  • 2018: The Administration has sought to expand and entrench the use of family incarceration. Two executive orders by President Trump, issued in January 2017 and in June 2018, called for the incarceration of asylum seekers and migrants for the pendency of their immigration cases.
  • 2019: U.S. District Court Judge Dolly M. Gee issued a permanent injunction, blocking the government from implementing new regulations that would expand its ability to detain migrant children with their parents for indefinite periods of time. The Justice Department had urged the judge to allow the Trump administration to withdraw from the Flores Settlement Agreement. (Flores v. Barr, 9/27/19). Her decision was sent to the Ninth Circuit Court of Appeals.
  • 2020: the Ninth Circuit Court of Appeals “vacated” oral arguments that had been scheduled for April due to COVID-19.

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June, 2020

A permanent resident is an immigrant who has been granted authorization to live and work in the U.S. on a permanent basis. A Permanent Resident Card, commonly called a green card, is provided by the U.S. Citizenship and Immigration Services (USCIS) as proof of the individual’s status.

The major benefit of having a green card is the ability for a non-citizen to be employed in the U.S. Other benefits of having a green card include:

  • Eligible to receive federal benefits (such as Medicaid, Children’s Health Insurance Program (CHIP), food stamps (SNAP), SSI or TANF, Medicare or Section 8 subsidized housing) after they have been in the U.S. with permanent resident status for at least 5 years;
  • Ability to sponsor relatives to apply for their own green cards;
  • Eligible for in-state tuition in many states, including Florida, at state colleges, universities and technical schools;
  • For shorter trips (6 months of less), international travel from the U.S. is much easier for non-citizens holding a green card; and
  • After five years, a Legal Permanent Resident may apply for U.S. citizenship.

    Facts You Should Know

    Federal law establishes eligibility criteria for permanent residency. Eligibility categories include:

  • Family: In broad terms, this includes immediate family members of a U.S. citizen or a permanent resident, fiancée of a U.S. citizen or permanent resident or the child of such fiancée, widow(er) of a U.S. citizen;
  • Employment: Includes individuals who have special skills, educational degrees or abilities, certain physicians who will work in an underserved area, or immigrant investors who will provide jobs;
  • Special Immigrant: In general, this includes religious workers, abused children, translators for the U.S., NATO retirees, international broadcasters;
  • Refugee or Asylee;
  • Human trafficking, crime victims, and people subjected to abuse;
  • Other Categories: Includes those who receive a visa under the U.S. Department of State’s diversity visa lottery, certain natives or citizens of Cuba, Haiti or Indochina (Vietnam, Cambodia or Laos);
  • Registry: May be available to those who have resided continuously in the U.S. prior to Jan. 1, 1972.

  • On April 22, 2020 the President issued an Executive Order to temporarily suspend the approval of green cards. However there are a number exceptions.

    The eligibility criteria under each of these categories is complex and subject to change.

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June, 2020

The Homestead Child Detention Center is located in South Florida about a 30 minute drive from Miami. The facility was a former Job Corps training site. In 2016 it was converted to use as a temporary detention center for unaccompanied minors crossing the border, but it was closed in 2017. In March of 2018, the center was reactivated and over 14,300 minors have been sheltered there. In mid-July, 2019 the center’s child population began to rapidly decline, and all of the children were removed by August 3rd.

Facts You Should Know

  • With 3,200 beds at its peak, children remained an average of 67 days before being released to a sponsor.
  • Homestead is the only child shelter for immigrants that’s run by a for-profit corporation, Comprehensive Health Services, Inc., which won a no-bid contract at a cost of over $1 million per day.
  • Located on a federal military base, the facility was not subject to state laws and regulation.
  • Since the Administration stopped the family separation policy, over 900 children have been separated from their families: 481 less than 10 years of age and 185 less than 5 years.
  • In 2018, Protesters, which included members of the American Friends Service Committee (AFSC) gathered 128,000 signatures from opponents of the facility.
  • Though labeled as a “temporary influx facility,” when the shelter emptied taxpayers paid $720,000 a day: $600 a day for each of 1,200 empty beds at the military base facility. When children were present, the cost was $750 per child daily.
  • Many groups, including our League, and the media raised concerns to our elected officials in Congress and kept Homestead in the news. Between July 3, 2019 and August 3, 2109 all of the children were moved out of the facility. On October 28th — it was announced that this facility was permanently closing, and the contract with Caliburn was not being renewed when it ran out in November 2019.

    Congressional Oversight

  • HR 3401: Increased funding by $4.59 billion for care of migrants and unaccompanied alien children in detention centers. It included a requirement that mandatory reports from HHS regarding treatment and management of centers be sent to both House and Senate Appropriations Committees.
  • House Appropriations Committee Hearings: 9/18/19 Oversight Hearing: Mental Health Needs of Children in HHS Custody. Office of Refugee Resettlement, Inspector General and Public Health Corps.

    Recent federal legislation, passed by the House awaiting Senate action

  • H.R. 2203 Homeland Security Improvement Act: Establishes several policies and bodies related to border security, including a commission to investigate and make a complete accounting of the handling of migrant families and children at the southern border since January 2017. Limits when DHS may separate a child from a parent or a legal guardian.

  • H.R. 3525 U.S. Border Patrol Medical Screening Standards Act: Requires U.S. Customs and Border Protection (CBP) to establish procedures to ensure consistent and efficient medical screenings for all individuals stopped between ports of entry, with a priority on screening those who have not reached the age of 18. Requires each Border Patrol sector to have an on-site pediatric medical expert.

Where are the children?

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June, 2020

An immigrant is a person who chooses to resettle in another country. Immigrants come to the U.S. with the intention of living permanently here. Various terms are synonymous for those granted “documented” immigrant status by the U.S. Citizenship and Immigration Service (USCIS): Green Card Holder; Immigrant; Lawful Permanent Resident (LPR); Resident Alien.

Facts You Should Know

  • Any noncitizen who enters the United States legally has either an immigrant or non-immigrant status.
  • Examples of non-immigrants are those who come to the U.S. on a temporary basis, such as those who come for tourism, business, temporary employment or to study. Once a person comes to the U.S. as a nonimmigrant, that person is generally restricted to the activity for which he or she was allowed entry and will usually be limited as to the time the person may remain in the U.S..
  • The Immigration and Nationality Act of 1965 (INA) gives preference to certain categories of individuals in determining who will be admitted as immigrants to the U.S. Priority is given to relatives of U.S. citizens, relatives of LPRs and to individuals with valuable employment-related skills.
  • Refugees are also a preferential category under the INA. 
 (For more information, refer to the Fact Sheet on Refugees.)
  • The INA establishes a per-country limitation, mandating that immigrants from any single country cannot exceed 7% of the total number of immigrants admitted in any fiscal year. Conversely, the INA sets aside a prescribed number of visas for immigrants from countries that have had low rates of immigration over the past 5 years.
  • LPRs can apply for U.S. citizenship after 5 years, or 3 years for certain classes.

  • According to the U.S. Census Bureau, from 2011-15 foreign-born individuals constituted 10.6% of the population of St. Petersburg and 11.6% of Pinellas County residents.

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June, 2020

Temporary Protected Status (TPS) designation is declared by the U. S. government with respect to specified countries for the following reasons: the safety of their citizens would be in jeopardy were they to be returned to their native country; or the country would be unable to absorb the return of its citizens. As of November 2018, the following countries had TPS designations:

El Salvador Haiti Honduras Nepal Syria
Nicaragua Somalia South Sudan Sudan Yemen

In November 2018 , the Administration announced that it would terminate TPS designation for El Salvador, Haiti, Honduras, Nepal Nicaragua and Sudan. Litigation stayed the termination of TPS status for all of these countries except Nepal and Honduras (these terminations had not been announced at start of litigation).

Facts You Should Know

  • Congress created TPS in the Immigration Act of 1990 to provide protections for individuals from countries that have an ongoing armed conflict, an environmental disaster, or extraordinary or temporary conditions that make it unsafe for the individuals to return to the country.
  • Persons seeking TPS status must show that they were present in the U.S. on the date their home country was designated for temporary protected status. A person seeking TPS status must apply to the U.S. Citizenship and Immigration Services (USCIS) for TPS designation. Applicants who are eligible for TPS status receive a temporary stay of deportation and temporary authorization to work in the U.S.
  • What happens if an individual’s TPS status ends? If TPS status for a country is terminated, then TPS beneficiaries from that country are subject to deportation unless they otherwise qualify to remain in the U.S, for example if they were granted permanent residency and a green card.
  • TPS beneficiaries are not eligible for any public assistances. However, children and pregnant women who have TPS status have been determined to be “lawfully present” in the U.S. and, therefore, eligible for Medicaid and the Children’s Health Insurance Program (CHIP). Also, persons who have TPS status are also eligible for affordable coverage options under the Affordable Care Act.
  • It is estimated that termination of TPS designation for Salvadoran, Haitian and Honduran beneficiaries would have a $4.5 billion adverse impact on U.S. GDP and that would impose $967 million in turnover costs on U.S. employers.

  • Of roughly 39,000 Haitians who have TPS designation, 20,900 (75%) live in Florida.

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June, 2020

Immigrant is defined as, “a person who comes to live permanently in a foreign country.” Undocumented immigrants are people who do not have legal immigration status in the country in which they reside. The term “illegal alien” has been used to describe undocumented immigrants. There is a political argument about what the correct term should be, with “illegal alien” considered the more pejorative description.

Facts You Should Know

  • According to the Center for Migration Studies, the undocumented population in the U.S. dropped from 11.7 million in 2010 to 10.7 million in 2017, and according to the US Customs and Border Patrol, illegal entry by individuals from Mexico has fallen by more than 90% since FY2000.
  • There are approximately 1.3 million young adults and millennials who were brought into the U.S. by their parents, but only 652,880 individuals had active DACA status at the end of FY2019, according to the US Customs and Immigration Service. Their status remains tenuous without Congressional action offering them a path to citizenship.
  • In the period from 2010 to 2019, people arriving with temporary visas and overstaying them has been the primary source of undocumented immigrants.

  • Apprehensions at the Southwest border grew significantly in FY 2019, mostly due to the increase in families seeking asylum. The U.S. Customs and Border Patrol apprehended more than 474,000 minor children and adults traveling as families and about 76,000 unaccompanied children along that border.

    These children and families are primarily from Guatemala and Honduras.

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June, 2020

The border between the United States and Mexico totals 1,989 miles. Currently, border walls of different types of fences span about 670 miles, which cost over $2.4 billion to construct. The construction was approved and funded through the Secure Fence Act of 2006. Most of this fence was built between 2006 and 2009, but Congress failed to allocate additional funding.

After the failure to procure funding, The White House decided to use last year’s national emergency declaration to pull $3.5 billion from military counter-drug enforcement. An additional $3.2 billion will be taken from Department of Defense construction projects for additional fencing projects. The number is more than five times the amount allocated to barrier construction by Congress for 2020. The funds transfer would bring the total amount devoted to border wall construction under Trump to $18.4 billion. These actions by the Administration are being challenged in the court system.

So far, the administration has only completed about 101 miles of barrier construction.

Facts You Should Know

  • Every year, no fewer than 350 million people cross our border with Mexico—legally! There are 35 border cities, with 48 crossing points and 330 ports of entry.
  • The border, largely designed to process single Mexican males, has not adjusted to the demographic shift to Central American families and unaccompanied children. Unlike Mexicans, they cannot be swiftly deported to their home country, and families also cannot be indefinitely detained because of rules limiting the incarceration of children to 20 days.
  • Various policies have been introduced to discourage migration rather than prepare for the high influx and demographic change: separating families; requiring asylum applicants to wait in Mexico while their applications are processed; metering and then closing the border.
  • The U.S. has sent more than 56,000 migrants to Mexico under the program, known as the Migrant Protection Protocols (MPP). The majority have been Central Americans applying for U.S. asylum. Mexico’s asylum agency, known as COMAR, reported in late 2019 that it had received 66,915 applications for asylum in 2019, up nearly 126% from the previous year.
  • Metering, which limits both the entry points and the number of entrants per day, has dramatically limited the number of people that can seek asylum.
  • Construction costs to expand the current wall to cover the entire border with Mexico continues to climb. It is estimated that the actual cost to construct a wall along the remaining 1,300 miles of the border could be as high as $20 million per mile. The cost of private land acquisitions and fence maintenance are pushing up the total cost to an estimated to $45 billion.

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May, 2020

Birthright citizenship is granted to a person by virtue of the fact of being born in the United States. The 14th Amendment to the Constitution states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

Facts You Should Know

  • The 14th Amendment to the Constitution was ratified on July 9, 1868.
  • The 14th Amendment overturned the 1857 Dred Scott decision by the Supreme Court. In that decision the Court held that “negroes, whose ancestors were imported into [the U.S.], and sold as slaves, whether enslaved or free, could not be an American citizen and therefore had no standing to sue in federal court, and that the federal government had no power to regulate slavery in the federal territories acquired after the creation of the United States.”
  • In 1898, the Supreme Court ruled in the Wong Kim Ark case that Congress had no power under the 14th Amendment to restrict or limit birthright citizenship. Under this decision, Native Americans born on reservations were not considered born “subject to the jurisdiction” of the United States and therefore not citizens. This was corrected in the Nationality Act of 1940, which declared all Native Americans born in the United States to be U. S. citizens.
  • Under current law and court rulings, U. S. born children of undocumented immigrants are given citizenship by the 14th Amendment.
  • In 2015, Texas limited the identification documents it would accept to identify parents and issue birth certificates for babies of undocumented immigrants. Facing a federal lawsuit, Texas agreed to expand the list of acceptable documents.

  • In recent years, legislation has been introduced and presidential executive orders threatened that would restrict birthright citizenship to children born to U.S. citizens, legal permanent residents, or aliens serving in the U.S. military. To date, no such legislation has been enacted nor has an executive order been issued.

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